SOFTMASTERS COMPANY LTD VRS. KUMASI METROPOLITAN ASSEMBLY (GJ2/74/24) [2024] GHAHC 515 (9 December 2024)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON MONDAY THE 9TH DAY OF DECEMBER, 2024 BEFORE HIS LORDSHIP, JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE -------------------------------------------------------------------------------------------------------- SUIT NO. GJ2/74/24 SOFTMASTERS COMPANY LTD - PLAINTIFF 3 SANTANA ROAD ABELEMKPE - ACCRA VRS. KUMASI METROPOLITAN ASSEMBLY - DEFENDANT KUMASI -------------------------------------------------------------------------------------------------------- TIME: 12:23PM. JUDGMENT: Per its Writ of Summons, the Plaintiff claim against the Defendant the following reliefs: 1. The sum of USD265,263.75 or its Cedi equivalent at the forex bureau rate at the date of payment being the balance outstanding against the Defendant for the provision of customer registration, validation and verification services which it contracted the Plaintiff to conduct. 1 2. Interest on the said amount at the prevailing bank rate from 9th July, 2019 until date of final payment. 3. Legal Fees at the approved Ghana Bar Association Scale of Fees. 4. Costs. The Plaintiff’s Case. The Plaintiff's Case is that, it first entered into an Agreement with the Defendant on 30th May, 2018, to provide customer registration, validation and verification services for the benefit and effective operation of the Kejetia/Central Market Redevelopment Project by the Defendant. Plaintiff averred that, for the successful commencement of the Kumasi Kejetia/Central Market Redevelopment Project, the Defendant was tasked by the Government of Ghana through the Ministry of Local Government and rural Development to ensure registration of all traders at the Kejetia and Central Market, which, task was contracted to the Plaintiff for execution as service providers. The Plaintiff averred again that, it successfully provided the services it was contracted for and duly submitted its final report and invoice covering the work done. The Plaintiff stated that, the invoice is sent or the billing amounted to USD265,263.75. According to the Plaintiff, after receipt of its final report and invoice, Defendant on 28th March, 2022, wrote to the Ministry of Finance through the Honourable Minister of the Ministry of Local Government, Decentralization and Rural Development, 2 requesting that, the Ministry takes up the expenses on the registration and validation as preoperational expenses. The Defendant according to the Plaintiff, indicated in its said letter of 28th March, 2022, that, since the services provided by the Plaintiff, was for the benefit of the project and the Defendant engagement, was at a time, when the special purpose vehicle establishment to manage the market was not in existence, the project must assume the cost for the services the Plaintiff provided. On 12th July, 2022, according to Plaintiff again, its Lawyers wrote to the Defendant demanding payment of its outstanding bill for the services that, it had successfully provided, but did not receive a response. The Plaintiff says that, despite the Defendant’s failure to honour its obligations in the Agreement, Defendant continued to request for further service, which it rendered and also attended to, regarding issues bothering on the service. The Plaintiff contends that, Defendant has refused and/or failed to pay it for the said outstanding balance despite repeated demands and has evinced a clear intention not to pay the said USD265,263.75. The Case of the Defendant: Per its Statement of Defence, Defendant averred that, Plaintiff was initially contracted by the Brazilian Company that constructed the new Kejetia Market Complex for the services that culminated in this suit. It averred that, the Brazilians paid for the services of the Plaintiff and after the completion of the initial engagement of the Plaintiff, the Government of Ghana through the Defendant re-engaged the Plaintiff to extend its services to cover phase 2 of the project. 3 According to Defendant, Plaintiff is well aware that, as a Government of Ghana Project, all payments on the project are made by the Government of Ghana through the Ministry of Finance. Defendant stated that, all other services provided by the Plaintiff on the Kumasi/Kejetia Redevelopment Project were paid up by the Government of Ghana. Defendant stated further that, the Ministry of Local Government, Decentralization and Rural Development and Finance have acknowledged receipt of the letter dated 28th March, 2022, in paragraph 9 of the Statement of Claim and informed Defendant that, same is being worked on according to Defendant. The Defendant averred that, had it not been some technical and bureaucratic procedures, the Plaintiff would have been paid for its services by the Government. The Defendant stated that, it shall continue to offer any assistance the Plaintiff needs from it to facilitate the payment for its services. Reply, Issues Set Down for Trial and Filing of Witness Statement. On 18th June, 2024, the Plaintiff filed a Reply and joined Issue generally with the Defendant on its Statement of Defence save admissions therein made. On 12th July, 2024, the following Issues were set down for trial. 1. Whether or not the Plaintiff is entitled to the outstanding balance of USD265,263.75 for service it provided for the Defendant. 2. Whether or not the Plaintiff is entitled to Interest on the outstanding balance of USD265,263.75. 4 3. Any other Issue(s) arising from the pleadings. The parties were ordered to file their Witness Statement and Pre-Trial Checklist. On 29th November, 2024, the Plaintiff duly filed its Witness Statement and attaching to it, intended Exhibits for the trial and Pre-Trial Checklist. The Defendant failed to file Witness Statement and Pre-Trial Checklist. Case Management Conference and trial. On 5th December, 2024, Case Management Conference was commenced and concluded on that self-same day and the matter adjourned to 9th December, 2024, for definite hearing and also for that day’s Court Notes embodying the date for hearing to be served by the Registrar on Defendant or its Lawyer. The Plaintiff opened its case accordingly on 9th December, 2024. Plaintiff’s Representative, one Dr Benjamin Adu was cross-examined by Learned Counsel for Defendant, concluded same whereupon Plaintiff also closed its case. The Defendant having not filed a Witness Statement did not open its case. Judgment was delivered on the self-same 9th December, 2024. The Burden of Proof and Evaluation of Evidence. The primary Issue for determination was whether the Plaintiff was entitled to the outstanding balance of USD265,263.75 for services provided for the Defendant and if so, whether it is entitled to Interest on the said outstanding balance. It is pertinent for the Court, however, to resolve a fundamental Issue of the contractual parties to the services indisputably provided by Plaintiff. This is because, the Defendant as per the fact of its case narrated supra, had steadfastly 5 maintained that, it is the Government of Ghana through Defendant that re-engaged the Plaintiff to extend its services to cover phase 2 of the project. Further that, Plaintiff is well aware that, as a Government of Ghana Project, all payments on the project are made by the Government of Ghana through the Ministry of Finance. It is not difficult therefore to see that, the Defendant dissociated itself as a contractual party on one hand and the Plaintiff on the other. The Court answers the question of whom were the parties to the project of which Plaintiff has sued the Defendant. The burden of proof is not on Defendant who has dissociated itself as a party to the Contract but the Plaintiff who has sued the Defendant as a party to the Contract instead of the Government of Ghana. It is statutorily required in this circumstance for the Plaintiff to introduce sufficient evidence on this Issue to avoid a ruling against it and not just that but to also establish the required degree of belief concerning this Issue in the minds of the Court. The Plaintiff testified on 9th December, 2024, through Dr Benjamin Adu as its Representative. The Witness stated at paragraph 3 of the Witness Statement that, sometime on 30th May, 2018, the Plaintiff entered into an Agreement with the 6 Defendant to provide customer registration, validation and verification services. Exhibit “A” was tendered in support of this testimony. The Court has duly examined the said Exhibit “A” and found that, the parties to the Agreement are Kumasi Metropolitan Assembly on one hand and Softmasters Company Ltd on the other. In Exhibit “A”, Kumasi Metropolitan Assembly is referred to as the “Client” and Softmasters Company Ltd is referred to as “service provider”. Exhibit “A” recites the following: “WHEREAS THE Service Provider provides Know-Your-Customer (KYC) compliant registration, validation and verification services WHEREAS the Client seeks to retain the services of Service Provider to provide Know-Your-Customer (KYC) compliant registration/validation of traders and shop/store owners for the redeveloped Kumasi Kejetia Market WHEREAS Service Provider agrees to provide the services to Client subject to the terms and conditions outlined below. “ From the above recitals in Exhibit “A” as well as the contractual parties therein, the claim that, the engagement of the project was between Plaintiff and the Government of Ghana is dispelled. The Court makes a finding that, the contract was between the Defendant and the Plaintiff. 7 Per the testimony of the Witness at paragraph 3 of the Witness Statement was entered into on 30th May, 2018. Exhibit "A" supports this testimony when it provides: “IN WITNESS WHEREOF, THE PARTIES SIGNED AT 30TH THIS MAY, 2018.” One Osei Assibey Antwi signed for the Defendant whilst Dr Benjamin Adu signed for the Plaintiff. The Local Governance Act, 2016 (Act 936) was in existence when Exhibit “A” was executed. This enactment provides in its Section 4(1) as follows: “A District Assembly shall be a body corporate with perpetual succession.” The Court finds that, being a body corporate as provided for per Act 936, it is the Defendant that per Exhibit “A” is in law and fact the contractual party to the Plaintiff and not the Government of Ghana. Having settled this primary question of who the contractual parties are, the Court now resolves the Issue of whether the Defendant is entitled to the outstanding balance of USD265,263.75 for services it provided the Defendant. From Defendant’s pleading, it does not deny that, the Plaintiff performed its contractual obligation under the project. It also did not deny that, the Plaintiff is owed an amount. 8 The Plaintiff per its Witnesses testified that, it was contracted to register and validate all the traders and rental units including stores at Kejetia and Kumasi Central Market to enable the authority responsible, allocate shops to the rightful owners after the completion of the Kumasi Kejetia/Central Market Redevelopment Project. He testified that, Plaintiff successfully provided the services it was contracted for and duly submitted its final Report and Invoice billing for an amount of USD265,263.75. He further testified that, the Defendant after engaging and enjoying the services of the Plaintiff has refused and/or failed to pay the said sum of USD265,263.75 despite repeated demands. The Court has already stated that, the Defendant has not challenged the claim of Plaintiff to payment for its services under the project. Further, under Cross- Examination, the fact of Plaintiff being entitled to payment for its services was not challenged by the Defendant per Counsel. However, the question is, is the Plaintiff entitled to be paid an amount of USD265,263.75? The Plaintiff has the burden under Sections 10(1) and 11(1) of the Evidence Act NRCD 323 to answer the question posed to avoid a ruling against it. The Plaintiff pleaded in its Statement of Claim that, it sent to Defendant its Invoice billing for USD265,263.75. This is at paragraph 8 of the Statement of Claim. The said 9 paragraph 8 was denied at paragraph 2 of the Statement of Defence and stated that, the Ministries of Local Government, Decentralization and Rural Development and Finance have acknowledged receipt of the letter referred to at paragraph 9 of the Statement of Claim and had been told that, same is being worked on. The said paragraph 9 of the Statement of Claim is that, the Plaintiff sent a final Report and Invoice after which the Defendant, on 28th March, 2022, wrote to the Ministry of Finance through the Honourable Minister of the Ministry of Local Government, Decentralization and Rural Development. The Witness tendered Exhibit “B” on the subject of payment of cost of registration and validation as preoperational expenses. Exhibit "B" is dated 28th March, 2022. Exhibit “B” was signed by Hon. Samuel Pyne in his capacity as Metro Chief Executive. At paragraph 3, the Defendant stated inter alia: “Messrs Softmasters Company Limited were contracted to register and validate all the traders and rental units including stores. The results of Messrs Softmasters Work, especially the data is being used to manage revenues collection for the phase 1 project. The data is of immense importance to the project and will as well be used for the allocation of stores and management of revenue for the on-going phase 2 of the project. The company submitted its report and invoice in August 2019 and is demanding payment of the Cedi equivalent of Two Hundred and Sixty-Five Thousand Two Hundred and Sixty-Three United States dollars and Seventy-Five Cents 10 (US$265,263.75) being the cost for the services the company successfully provided (Reference: Invoice Attached).” The above quote from Exhibit “B” supports the case of the Plaintiff as to its entitlement to USD265,263.75. This is an instance where a Statement made by the Metro Chief Executive of the Defendant supports the case of Defendant's adversary. In the face of such glaring evidence and discharge of the burden of persuasion and also of producing evidence, this Court cannot but find that, the Plaintiff is entitled to the outstanding balance of USD265,263.75 for services it provided the Defendant. As the Judgment gradually proceeds to end, the question is, must Plaintiff be entitled to Interest on the outstanding balance of USD265,263.75? Per its Writ, the Plaintiff claims Interest at the prevailing bank rate from 9th July, 2019, until date of final payment. The Court (Award of Interest and Post Judgment Interest) Rules, 2005 (C. I. 52) regulates the award of Interest and provides as follows: “1. If the Court in a civil cause or matter decides to make an order for the payment of interest on the sum of money due to a party in the action, that interest shall be calculated (a) at the bank rate prevailing at the time the order is made and (b) at simple interest but where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner, the Court shall award that rate of interest calculated in that manner.” 11 The Court proceeds to ask whether the parties agreement, Exhibit “A” specified the rate of Interest which to be calculated in a particular manner to enable this Court to award same. The Court finds from Exhibit “A” that, the parties did not specify the rate of Interest to be applied to the Contract amount to be paid to the Plaintiff should same fall into default. The law is trite that, when a claim of Interest is based on an agreement, it has to be endorsed on the Writ, pleaded and evidence led on it to proof it. See the case Holland West Africa v Pan African Trading Co [1976] 2 GLR 179 @ 183. There being no such agreement in Exhibit “A”, the Plaintiff did not endorse same on the Writ nor pleaded same and evidence led thereof. As stated supra in a civil cause of matter as the present case, the Plaintiff seeks Interest. The Court has decided to make an Order for the payment of Interest on the Principal Amount due Plaintiff in the sum of USD265,263.75. The Interest shall be calculated at the Bank Rate prevailing at the time the Order for Interest is being made. 12 In accordance with C. I. 52, the Plaintiff is awarded Interest at the Bank Rate prevailing on USD265,263.75. The Plaintiff succeeds on reliefs (1) and (2) in the terms herein stated and costs of One Hundred Thousand Ghana Cedis (GH₡100,000.00). (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OFTHE HIGH COURT) LEGAL REPRESENTATION: Christabel Akweley Gabor holding the brief of Benson Nutsukpui for the Plaintiff. Patrick Adu-Poku for the Defendant. 13